مجله تحقیقات حقوقی
پیاپی 90 (تابستان 1399)

Companies supplies present and future needs of their employees. Therefore, the survival of the company is very important for its employees. However, in some cases the bankruptcy of the company and entry into the process of liquidation is inevitable. The present study uses a descriptive-analytic approach and comparatively, sought to answer the key questions that bankruptcy rules of Iranian commercial companies how much support to the workforce and are available tools in this context efficient or not? The results of the research show that the legal system of Iran in comparison with the French and British has poor regulations about the prevention of corporate bankruptcy and the preservation of employees' job position. Support mechanisms for employee claims (such as privileging employees' claims) are also ineffective and inefficient. Therefore it is necessary that in the new draft law on the commercial, in addition to strengthening the protection of employees' right to receive their claims, based on social interests an insurance institution be provided.

Article 196 of the civil law finds it feasible to prove transaction performance for a third party even after the contract conclusion and, in case of being proved, the transaction is considered to have been performed for a third person. Despite the purport understood from the term “transacting party”, the majority of the jurists realize the foresaid article as being indicative of transactions by an agent for an Undisclosed client. The present article’s authors are of the belief that the subject of the article includes transactions by an agent and a rouge and its rulings refer to the article 197 of the civil law. This way, if the contract subject is an objective and specific property belonging to another person, there would be essentially no need for proving the agency contract’s intention and its justification only causes the transaction to be excluded from unauthorized contracts and elicits the owner’s bound to the contract. On the other hand, if the transaction subject is an action to be done by the transacting parties, proving of the agency or unauthorized contract’s intention would be useless due to being non-attributable and the contract is condemned to invalidation. Thus, the rulings of the article 196 should be interpreted for supporting the transacting party and not the Undisclosed person. The comparative study of these verdicts in Iran and England’s laws can assist the reduction of conflict between the purports of the article 196 and the commutative justice and public order considering their similarities.

The adoption of a resolution of the UN General Assembly entitled "Towards a Global Pact for the Environment” in May 2018 marks the start of an important development that is taking place in the field of international environmental law. The present article seeks to investigate the following with a descriptive-analytical approach: The need to emphasize the imperative of environmental principles and norms; reasons for drafting an ecological framework and umbrella convention and analysis of the human rights approach to the treaty in light of the new procedure of the International Court of Justice. This article concludes that UN environmental reform is essential, and the adoption of the pact is an effective step in this regard. The establishment of a general and binding convention is indispensable. Finally, the anthropocentric approach of the document also emphasizes the interweaving of environmental rights and human rights that is not in contradiction with recent precedents of the International Court of Justice in its special approach to the environment per se.

"The Agent" is a person appointed by a state to represent it in the proceedings before the International Court of Justice (ICJ). The agent leads the state delegation team before the ICJ and manages legal activities of the state during the course of litigation. The main function of the agent is to defend the appointing state. However, in proceeding before the ICJ, the agent may declare statements that its effect can leads to new obligation for the principal state. These statements are frequently declared without previous apparent consent of appointing state. The aim of this article is to assess these statements of the agent and to specify its legal effects. In other words, this essay tries to determine whether the agent of state before the ICJ is competent authority to declare new obligation for appointing state or not. There are conflicting theories to answer this question. However, it seems that legal logic gives a positive answer to this question. In addition, the case law of the ICJ and its predecessor, the PCIJ, confirm this approach.

Computer data is flowing in cyber space regardless the national borders. In many cases data related to crimes as electronic evidence is not accessible in territory of crime prosecuting state. In these cases, success in prosecuting the crimes requires the access of trans-border data related the crime. Traditionally this access is possible through mutual legal assistance between states based on acquiring consent of the state where the data is stored. This approach is leaded by territorial sovereignty principle but is not preparing the enough speed for gathering electronic evidence. Nowadays states access the data directly and without acquiring consent of the state where data is stored. This direct access to data has been accepted by some of the international frameworks in specific conditions. In spite of this, there is not international unique method for accessing to trans-national data. Each of the trans-border access methods has advantages and disadvantages which should be considered in initiating a new international frame by states.

The legal principle of punishments, without any restrictions and absolutely, includes all punishments and therefore includes all types of ta'zir punishments. A special type of ta'z .r punishments that have a minimum and a maximum in the Shari'a texts and the determination of the punishment in a specific area is left to the judge is called the Shari'a prescribed ta'zir Although this unfamiliar term is misleading and erroneous, it is officially recognized in Islamic Penal Code and Iranian jurisprudenceThe legal principle of punishments, without any restrictions and absolutely, includes all punishments and therefore includes all types of ta'zir punishments. A special type of ta'z .r punishments that have a minimum and a maximum in the Shari'a texts and the determination of the punishment in a specific area is left to the judge is called the Shari'a prescribed ta'zir Although this unfamiliar term is misleading and erroneous, it is officially recognized in Islamic Penal Code and Iranian jurisprudence

The compensation of personal injury is an important part of civil law. Today it is more important because of improvement of medical science and increasing of dangerous environments. The personal injuries include some types of losses and their assessments are different and difficult. This difficulty is more in assessing the children’s injuries. We do not have enough background and many thing is based on guesses.in USA they pay attention to their needs and compensate them but in minimum sizes. we want to study about the possibility of compensating children’s personal injury in Iran law .we will use the suggest from American law. For example we can use the structured payment in loss of deprivation from revenue capability. Also we can use periodic payments in medical injuries or we can use a lump sum in emotional damages. Any way it is important to know that we consider that our law about diyah and personal injuries let us to assess the personal injury damages.

Nowadays one of the most important challenges of international law is to determine the extent of governments' activity in the vast expanse of outer space. The results of this article show that the management of sovereignty activities and the peaceful use of the atmosphere are directly influenced by the actions of international states and communities. In this way, sovereignty, power and privilege are monopoly and inalienable, if not government by ruling itself as the owner of a part of space, it would have a legitimate right to prevent other states from exploiting it. In general, in spite of the necessity of the principles of intolerance and freedom, the two concepts of sovereignty and freedom are always interdependent, contradictory, and can be restrictive. The use of space for military purposes is not prohibited if it is in accordance with Article 51 of the UN Charter, but on the other hand, the application of the principle of prohibition of possession with respect to the principle of freedom will have many problems until the exact restriction of airspace and the atmosphere. This is the overall result of this article. The method of this study was descriptive-analytical.

Three golden sides of the Characteristics of Lawyer profession triangle as follows: independence, lack of speculation, and the rule of personal considerations. Lawyer independence requires a special relationship between lawyer and client.Moreover, the main purpose of a lawyer, unlike a businessman,is not to seek a profit. Eventually the personal relationship is the essence and reason of the existence of many characteristics of the profession.The special relationship with the client is the reason of the independence of the lawyer and also the reason why the Services cannot be evaluated.To legalize the collaborative exercise of law in the form of law firms with the benefits of comparative law and with considering all three sides of this triangle,it is suggested: to guarantee independence, industry inputs should have a special place, the doors of the institution should be closed to external capital and the partners should be personally responsible for the damaging consequences of their activities.To reject speculation, the principle of equal distribution of interests should be different between the bringers.To focus on personal considerations, the institute should consist of at least two partners and consider the maximum number of partners.New partner entry to the institute with the consent of all partners should be possible. In return for the harmful act of the Partner the joint liability of the company and then unlimited liability of partners towards corporate debt shall be established. Removing the effect of void of a company contract and reducing the dissolution of the company should get on the agenda.

If bill of exchange or cheque was not accepted by the drawee, holder of that bills could resource to other liable parties or that want to take a guarantee before maturity. Acceptance by the third party is a method to avoid holder’s resource to issuer and endorser before maturity. This action can be done partially or wholly. This acceptance can be done after having done a protest for non-acceptance. Considering the legal nature of acceptance for honor based on the doctrine of offer faces with this important issue that it cannnot cover all types of this act. The Benevolent intervention in another doctrine that is a far argument and thus cannot cover all types of the act. The same problem exists on the agency doctrine. Instead of these doctrines, unilateral obligation doctrine ignores one of the involved willingness's in creating that act. Based on guaranty contract doctrine not only we cannot open any door but also it creates new problem. Moreover, this doctrine is contradiction with interpretation of parties' willingness. It is, therefore a special legal action that involves bill of exchange obligation and arises rights and responsibilities.

The use of remote sensing data as an evidence before tribunals, has received less attention than other aspects of its application; However, the absence of specific court rules for digital evidence and specially these data is not necessarily an obstacle to its presentation and evaluation before international tribunals and the evidentiary rules can also be applied to digital evidence, therefore it can be stated that the acceptance of remote sensing data will not be legally impeded. Satellites and other remote sensing technologies are revolutionizing our capabilities which enable us with a perception beyond our senses to peer into the furthest parts of the world and obtain reliable, inexpensive legal evidence that in some cases can be the only available evidences; For these and other reasons, a review of the current use of remote sensing data as evidences, and paying attention to ways of increasing its future use in the legal context, is timely. This paper describes the technology and its acceptance conditions by using a descriptive-analytical and library method and has examined the admissibility and authenticity of these obtained data, in judicial proceedings and the rules of procedure of International Court of Justice and the International Tribunal for the Law of the Sea on an Adaptive case by case method. And finally, take a look at the decision of those tribunals and highlight the advantages and disadvantages of this debate.

Decision-making styles are various among the judges. Each judge follows a unique mental structure and pattern to reach a decision which this pattern is revealed by decision making in relation to many other factors. The root of this difference is because Judges make their decisions based on the characteristics of emotional intelligence, personality-psychic, tacit knowledge, and perception of various phenomena, attitudes or experiences and special strategies that acquired during the judicial practice. The term that is called "Judicial hunch" in addition, it is in the style of intuitive decision making with the involvement of all of the abovementioned factors the superiority of a judge over another judge it determines the quality of judicial hunch. There is disagreement as to the validity of decisions based on judicial hunch. This essay tries to review the concept of judicial hunch in the context of the intuitive decision making style and related concepts as well as the factors that make up the difference in this category based on theoretical approaches.

The subject of this article is concept of public acts in light of judgments of administrative justice court. Simply, public acts versus private acts, are a group of acts that are done by individuals who are familiar with public law. Due to this difference, making distinction between public acts and private acts as well as dividing the public acts are really important. Because following them special law regime is applied to each group. Moreover, the way of judicial supervision on both groups of acts is depend on the identification and definition of them. On the other hand, distinction between different kinds of public acts is determinant related to the jurisdiction of administrative justice court. The aim of this article is to identify the criteria of distinguishing public acts in light of judgments of administrative justice court. The writer believe that the criterion of administrative justice court to identifying public act is the doer of an act rather than the act itself. 

The establishment of the obligation to resolve a dispute by the arbitrator requires the declaration of his will and acceptance. The acceptance of this obligation by the arbitrator creates a contractual relationship between the arbitrator and the parties to dispute. From the view point of law of obligations this relationship includes some aspects which have been less considered at least in Iranian law due to some legal ambiguities. The present study by answering questions like: whether this contract is in the form of a mutual interest contract or a bare contract, whether an agreement is necessary or the parties can terminate it at any time, whether the contract with the arbitrator is a personal contract or it does not depend on the parties, and finally, whether this contractual relationship is among conditional contracts or a contingent contract, applies the library method to seek an analysis of some aspects of the contract with the arbitrator.

Imami Jurisprudence, which sets the basis of the judiciary system in Iran, has a special approach towards the officiary of judges including their income for which there are specific regulations; for instance, their salaries are to be paid from the state treasury and well enough so that they need no one to manage a decent life and might not be influenced. However, it seems that not enough attention has been paid to the dignity of judges and its requirements, such as favorable income, welfare and psychological support. As a result, existence of these issues and resolving them are still one of the judges’ main concerns. Furthermore, one of the punitive policies adopted by the judiciary system to prevent the commitment of any crime by the judges is to publicize the guilty ones whose wrongdoings and misconducts, in fact, could be the result of the harm they are exposed to. Seemingly, this policy tends to present the system’s incisive attitude to oppose any crime even in its own system ignoring the necessity of resolving the roots of these issues. This article investigates the major shortcomings which affect the dignity of the judges in the judiciary system highlighting the responsibilities of those in charge to improve the status quo. Moreover, the significance of evolving an exalting system for judges and the necessity of developing an integrated procedure for disciplinary inquest instead of subjective inference are discussed.

‏‌‏The investor-sate dispute settlement (ISDS) particularly ‎‏ ‏in the energy sector is an ‎appropriate ‎mechanism which could result in reaching a balance to ‎protect standards associated with foreign ‎investors and the sovereign rights of host states as well.This article emphasizes the ways through ‎which the ‎investment treaty system and ISDS are being developed to achieve ‎an appropriate ‎balance between private rights and public ‎interests, particularly in regards to the recent ‎improvements in ‎sustainable development, climate change accountability, and ‎promotion of ‎human rights protection.‎‏ ‏Finally, this articles studied how the arbitration method including ISDS, ‎has contributed ‎‏ ‏to the public interest and the growth of the rule of law ‎around the world equally ‎‎.While a range of improvements to the‏ ‏investment treaty system has been made, the system as a ‎whole and ISDS are vital components of the energy industry, integral to our future energy ‎security and key contributors to global stability through their promotion of the rule of law.‎

The set off is one way for discharge of obligations and has different kinds. One kind is called judicial set off, Because is announced by court and that is regulated in 18 & 142 articles of civil procedural law. despite these articles, in practice, there are many differences among lawyers about judicial set off. Some believe that these articles are applicable to absolute set off, so there is no need to submit a separate petition for claim it and in contrast, some lawyers without giving special criterion believe that some kinds of set off needs claiming by petition and the others don’t. It seems that, claiming set off is a kind of complicated confession and leads to shifting the burden of proof, so, claiming set off as a defense doesn’t require submit a petition and is considered as a pure defense that court is obliged to hearing it.Keywords: set off- judicial set off- discharge of obligation- shifting the burden of proof.

The Administrative Justice Court has been a successful and influential institution in the history of the judiciary after the Islamic Revolution. But in the current situation, many judges and individuals working in the Administrative Justice Court have private, criminal, and formal studies of administrative proceedings. This situation has caused the votes of the Administrative Court to have a poor public record, which is why, despite three decades of activity, the Tribunal has not yet been able to provide the legal community with an acceptable administrative procedure, and the votes of the branches and the board The General Court of Administrative Justice has not changed the origin of the work in the administrative rights of the country. Many incorrect administrative procedures have emerged, often due to a lack of understanding of the basic concepts and principles of public law knowledge. The existence of these alien judges with public rights is one of the most important issues facing the Administrative Justice Tribunal, and until such time as the problem is resolved, the Administrative Justice Court can not expect a change in administrative law. Therefore, the necessity of using expert judges and experts in the field of public law has been the usual demands of public law professors.